Blue-Sky Thinking on Health Reform: An Interstate Compact for Health Insurance

Key Points

• Health insurance is the only line of insurance regulated by the federal government, but federal control has created and deepened the health crisis.
• Obamacare attempts to conscript states to do the dirty work of limiting people’s choice of health benefits.
• States have ensured portability and competition in other lines of insurance through an “interstate compact,” a treaty of sorts between the states defined by the U.S. Constitution.
• Including health insurance in an interstate compact would effectively demonstrate that states are ready, willing, and able to regulate portable, individually owned, health insurance.

Medicare cuts, federal control of medical practice, reduced incentives to invest in medical innovation, and general economic sluggishness; such are the wages of Obamacare, which also conscripts the states to do much of its dirty work. It dramatically expands Medicaid, such that 16 million to 18 million Americans will become dependent on this welfare program. State Medicaid programs sentence low-income Americans to worse access to medical care than if they had private health insurance.1 Obamacare further encourages states to institute so-called “exchanges” that will limit residents’ choice of health insurance to policies determined by politicians and bureaucrats. These exchanges will be significantly more expensive than advertised by the Administration.2

Last November’s elections provided clear evidence that the majority of people reject Obamacare.3 Many state offices were won by candidates who oppose the federal takeover of access to medical care. As described in a previous publication, the states, if they haven’t done so already, can launch a number of initiatives to help deconstruct Obamacare.4 Further, a number of important reforms that lie unequivocally within states’ sovereignty have little or nothing to do with Obamacare.

Medical-malpractice reform, product-liability reform, increasing the scope of practice of allied health professionals, and improving choice and competition amongst hospitals by relieving or repealing Certificate-of-Need (CON) laws, are some of the changes that states should advance notwithstanding the death throes of Obamacare over the next two years. Indeed, November’s electoral wave might provide unprecedented opportunities to satisfy pent-up demand for such reforms in many states. For governors and legislators seeking to prioritize their efforts, the U.S. Index of Health Ownership indicates which reforms are most critical in each state.5

But wait: There’s more! States can also explore ways of demonstrating that there is no need for the federal government to be in the business of health insurance at all. One tool is the “interstate compact.” A compact is treaty of sorts between two or more states, by which each state voluntarily gives up sovereignty to the compact. The U.S. Constitution (Article 1, section 10) addresses states’ power to enter compacts: “No State shall, without the consent of Congress. . . enter into any Agreement or Compact with another State. . . ”

Ted Cruz and Mario Loyola, lawyers at the Texas Public Policy Foundation, have recently breathed new life into the idea that states can use compacts to roll back federal overreach. When Congress consents to them, interstate compacts actually become federal law, according to Cruz and Loyola. However, courts have also held that consent can be inferred from Congress’ acquiescence to a compact. Because they bind the states, courts have found that interstate compacts trump conflicting statutes passed by the member states, as long as the states belong to the compact in question.6

One of the goals of effective health reform is health insurance that is owned by the individual and portable from job to job and state to state. For more than half a century, Congress has failed to correct the flaw in the Internal Revenue Code that discriminates against such health insurance, and given employers monopoly control of our health dollars. Although unified in opposition to Obamacare, Congressional Republicans have never exerted a significant effort to fix this deeper problem. Indeed, they reinforced the status quo in 1996 when they collaborated with President Clinton and Democrats in Congress to pass the Health Insurance Portability and Accountability Act (HIPAA), the federal government’s first intrusion into the regulation of private health insurance.7

Facing decades of congressional failure, it is high time for states to seize the initiative, and begin discussing an interstate compact for health insurance. Although the Supreme Court decided (in 1944) that insurance is subject to congressional authority under the Constitution’s interstate commerce clause, Congress responded by declining to exercise this authority and leaving insurance regulation to the states. Over the decades, states have managed successfully to deal with crises in all lines of insurance.8 The federal government’s abandonment of the field has been successful: A presidential candidate campaigning on solving a national “crisis” in auto insurance would be unimaginable, even ridiculous. Unfortunately, Congressional control of health insurance has only deepened the health crisis.

Nevertheless, an effective interstate compact for health insurance faces a couple of obstacles. First, while there are examples of compacts passed without explicit Congressional approval, none is established deliberately to provoke a hostile response from the federal government. Such would be the outcome of an interstate compact attempted while Obamacare is still the law of the land. Therefore, nobody should be supremely confident that federal courts would let such a compact survive a challenge by the Administration.9

A second obstacle could arise from the complexity of building a new compact for a single line of insurance from scratch. Indeed, doing so reinforces the flawed notion that health insurance should be governed differently than other lines of insurance. Health insurance is already treated so differently than other lines of insurance that it is not really “insurance” at all. True insurance is designed to indemnify the insured financially for rare, unpredictable, catastrophically expensive events. Instead, federal laws motivate us to buy pre-paid health plans that launder almost all our health dollars through insurers’ claims-processing bureaucracies, increasing administrative costs but adding no value.

This second obstacle might be overcome by adding health insurance to the interstate compact that already exists for other lines of insurance: The Interstate Insurance Product Regulation Commission (IIPRC). According to the IIPRC:

The advantages of enlarging this compact to include health insurance are easily enumerated. First, it exists. The IIPRC enjoys solidly written legislative language; and committees for audit, finance, product standards, rulemaking, and other critical responsibilities for a successful compact. Insurers file their forms and reports with the compact, after which they can conduct business in all the compacting states without further fuss or bother. Second, all of this information is freely available at its website, which bears the convenient URL of www.insurancecompact.org.

Second, state legislators and other interested parties can quickly educate themselves by contacting officials employed by the compact who can assist and advise. Third, to the degree that the IIPRC would be unable to enlarge itself to accommodate health insurance, this would serve further to expose the absurdity of federal laws governing health insurance. Such exposure would increase popular demand for health reform that reduces, rather than increases, federal power.

Benign forces conspired to drive states to enter into an interstate insurance compact for a simple reason: Most insurance is the property of individuals, not our employers. People need policies they can keep when they move from state to state. Nobody who buys life insurance in Florida, and then moves to California a few years later, worries for one minute that he will lose his coverage because he has left the state in which he bought the policy. Life insurers would not sell many policies if that were to happen. The IIPRC facilitates interstate portability.

Enlarging the compact would demonstrate that states are ready, willing, and able to regulate individually owned and portable health insurance. Rather than wasting scarce legislative time trying to find the least harmful way of “implementing” Obamacare, state politicians should invest in reforms that will survive long after Obamacare is relegated to history’s dustbin. Including health insurance in an interstate compact would be such a reform.

ENDNOTES

1 John R. Graham, “Government Greed, Not Human Need, Drives the Growth of Medicaid,” Health Policy Prescriptions, vol. 8, no. 8 (August 2010).

2 John R. Graham, “Are Your State Politicians Serious About Defeating Obamacare? A ‘Litmus Test,’” Capital Ideas, vol. 16, no. 41 (December 1, 2010); John R. Graham, “Should Your State Establish an Obamacare Health Insurance Exchange?” Health Policy Prescriptions, vol. 8, no. 10 (October 2010).

3 Jeffrey H. Anderson, “Economy Isn’t the Key Factor in All Elections,” Investors Business Daily November 24, 2010. Available at https://tinyurl.com/35csfue.

4 John R. Graham, “Election Gives States Momentum to Defeat Obamacare,” Capital Ideas, vol. 16, no. 38 (November 3, 2010).

5 John R. Graham, U.S. Index of Health Ownership, 3rd edition (San Francisco, CA: Pacific Research Institute, July 2009).

6 Ted Cruz and Mario Loyola, Shield of Federalism: Interstate Compacts in Our Constitution (Austin, TX: Texas Public Policy Foundation, December 2010).

7 John R. Graham, “Repeal and Replace, But With What?” Health Policy Prescriptions, vol. 8, no. 4 (April 2010).

8 John R. Graham, “Popular But Pointless: Subjecting Health Insurers to Federal Antitrust Laws Would Avoid, Not Achieve, Reform,” Health Policy Prescriptions, vol. 8, no. 2 (February 2010).

9 Robert Moffit (Heritage Foundation), presentation to the American Legislative Exchange Council’s States and Nations Policy Summit (Washington, DC, December 3, 2010).

10 IIPRC, About the IIPRC (Washington, DC: Interstate Insurance Product Regulation Commission, 2010). Available at https://www.insurancecompact.org/about.htm as of December 9.